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Biggest Net Neutrality boosters question FCC proposal

The strength or weakness of a proposed Internet rule, known as net neutrality, could rest in the interpretation of just one word: "reasonable."

The way that word is defined can tilt fortunes in the Web economy and set the course for how consumers use the Web today and in the future, proponets of the policy say.

Now, a group of law professors and public interest groups are telling the Federal Communications Commission that its proposed rules don't sufficiently define what that word means for Internet service providers like AT&T, Comcast and Verizon as they management traffic on their networks. In a letter to FCC Chairman Julius Genachowski sent this morning, the legal scholars -- all long-time proponents of net neutrality -- are asking the agency to clear up ambiguity on "reasonable network management" practices in a draft of rules. Here's the letter: NetN NPRM FCC professor letter.pdf (pdf)

"We trust Genachowski," said Tim Wu, a law professor at Columbia University and chairman of public interest group Free Press . Wu co-wrote the letter. "But this is a historic rule and this letter was in the spirit of looking at other FCCs and creating a stronger rule that sets a policy that lasts longer as opposed to something that is highly dependent on the whims of a commission in power."

As the proposed rules are written, they say, Internet service providers can work around loose interpretations of reasonable network management. There aren't clear standards in the draft rules for what is considered reasonable. This could allow ISPs to act as gatekeepers of the Web, giving greater priority to their own services over competitors, they say.

It was the first time net neutrality supporters have expressed skepticism of Genachowski's net neutrality push. The FCC chairman crafted President Obama's technology agenda, which highlighted open-Internet access rules and the spread of broadband Internet services to all U.S. homes as key underpinnings of energy, health, economic and education goals.

Addressing concerns by the public interest groups, FCC senior counselor Colin Crowell, stressed that the vote was the start of a long process. A spokesman at the FCC could not be reached to comment on the letter by law professors.

"We are at the very beginning of an open-multi-month public proceeding that will examine many key policy issues," Crowell said in a statement last Friday. "I am confident that the end result will reflect Chairman Genachowski's unwavering commitment to preserving the free and open Internet."

The red flags, the law professors say, are in two paragraphs buried deep in the 106-pages draft proposal. The graphs wade into technical and legal details about standards for "reasonable network management" and "nondiscrimination" of Web content.

In paragraph 137, the FCC appears to erase a standard for reasonable network management set by a rule against Comcast.

As background: the FCC passed a proposal to begin finalizing draft rules on Oct. 22, a process that should take at least four months as the public weighs in with comments. Broadly, the draft policy is meant to keep the Web open for consumers to access any legal content. It codifies existing principles that prohibit Internet service providers from blocking certain traffic on their networks and denying devices that can be used to access the Web. Genachowski threw in another principle that keep carriers from acting as gatekeepers by "discriminating" content on the Web, for example by sharing more for some content and services than others. A final principle would make those Internet service providers reveal how they run their networks to make sure they don't unfairly prioritize some content over others.

All six principles are subject to "reasonable network management" practices.

"We submit this extraordinary early letter only to flag what we believe are two ambiguities in the Notice that we hope can be addressed early to provide a clearer foundation for comments," wrote Wu, Stanford University Law professors Larry Lessig and Barbara van Shewick; Yale Law School's Jack Balkin; South Texas College of Law Professor John Blevins; and University of Louisville School of Law's Jim Chen.

In the FCC's recent rule against Comcast for allegedly blocking file-sharing site BitTorrent, the agency grappled for months about what it defined as "reasonable network management." Comcast argued that it's treatment of BitTorrent applications were within the bounds of reasonable traffic management.

Then-FCC Chairman Kevin J. Martin, in a controversial three-to-two vote against his party, ruled against Comcast and said that for a network management to be considered reasonable, it "should further a critically important interest and be narrowly or carefully tailored to serve that interest."

Public interest groups say that those standards provided a clear guidepost to carriers for how they could management traffic fairly (in times of national security, for example, or extreme congestions on shared pipes). Anyone arguing their traffic management is reasonable would have a steep hill to prove it was justified, they said.

But in the draft rules by Genachowski, specifically paragraph 137, those standards are thrown out.

We believe that this standard is unnecessarily restrictive in the context of a rule that generally prohibits discrimination subject to a flexible category of reasonable network management. We seek comment on our proposal not to adopt the standard articulated in the Comcast Network Management Practices Order in this rulemaking.

Cisco, a company that sells gear to manage traffic on Internet networks, said the Comcast standards were too strict. By erasing the standards established by the ruling against Comcast, network operators may be given more flexibility to manage traffic on their networks.

"This is an improvement," said Jeff Campbell, senior director for global policy and governmental affairs for Cisco. "Essentially, what Comcast decision said is that you always have to treat everything similar similarly. But there may be situations when that doesn’t make sense. Think it was a prudent change by the commission."

Public interest groups said the paragraph came as a surprise. They argue that keeping the Comcast order as a standard erases any doubt as the to the agency's intention to be firm on the rules.

"Reasonable network management is the heart of this whole thing," said Art Brodsky, spokesman for Public Knowledge, a public interest group... "The Comcast standard is a highly relevant and tightly drawn remedy."

He said language in that paragraph was rewritten until the last hour and was meant to assuage concerns by the two Republican commissioners. It appeared important, Brodsky said, for Genachowski to get unanimous votes, including from Republicans Robert McDowell and Merideth Atwell Baker, to move forward with the proposal.

And in paragraph 107, Genachowski appears to narrowly define "non-discrimination" as a term that would prevent ISPs for charging a content, application or service provider for enhanced or prioritized access to subscribers of broadband service. The draft suggests allowing that practice (think AT&T charging the commodities futures market for better and faster service for a dedicated broadband line for their users).

Public interest groups and the law professors say "non-discrimination" is more broadly defined and could include, for example, the practice of slowing some services and speeding others (think Washington Post content getting to users faster than news from the New York Times). And it asks Genachowski to explain if he has a wider view of non-discrimination.

photo: Tim Wu
credit: Free Press

By Cecilia Kang  |  November 2, 2009; 8:00 AM ET
Categories:  Broadband , Net Neutrality  
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In this article, Cecilia Kang demonstrates that she is listening to Google's lobbyists (including Wu, Lessig, van Shewick, etc.) exclusively and writing biased articles to promote their views.

Google has surely gone over the proposed regulations with a fine toothed comb, and has no doubt told the lobbyists mentioned in the article above (all of whose organizations have received support from Google) to protest any portion of the proposed regulations that might not completely straitjacket ISPs, precluding competition for Google's monopoly.

Hey, Cecilia, how about a view from those of us who actually operate, maintain, and build out the Internet and want it to prosper -- rather than from Google's bought-and-paid-for lobbyists?

Posted by: squirma | November 2, 2009 9:06 AM | Report abuse

Hey Brett,

How is it that the legal scholars are Google lobbyists? You should stop slandering people. These scholars all held views consistent with those they hold today on this issue, long before Google had two nickels to rub together.

Has it never crossed your tiny mind that some people, on both sides of this issue, actually believe in the things they advocate for? Does everyone in your world have to be only financially interested? You of course are financially interested, but then, there are other WISPs who support network neutrality, suggesting your opposition is more rooted in your GOP/Libertarian politics than it is in a business sense. And that's OK! Great! But every time you accuse people of being shills for Google, who are plainly not, you look like a loony and undermine your own cause.

Ultimately, the FCC will pass rule, and it won't impact your business one lick. And since this FCC is pro-competition, it will open up more spectrum, and lower your special access rates. So you'd be wise to stop looking like a crazy person, and work with those who are actually trying to make things better for everyone.

-- Ama Bala

Posted by: amabala | November 2, 2009 10:05 AM | Report abuse

How is it that the "legal scholars" are Google lobbyists? Actually, it's pretty simple: their salaries are paid by Google through "donations" to their insitutions. For example, Google gave millions of dollars to Stanford's Center for the Internet and Society, where Larry Lessig and Barbara van Shewick worked. Needless to say, the expected quid pro quo for this money was support of Google's agendas. Which both of them delivered: the Stanford center is well known for its advocacy of Google's "network neutrality" agenda and the loosening of copyright protections.

As for the potential impact of the FCC regulation of the Internet: you're not qualified to comment, because you obviously have no idea of the logistics of the business. But as an ISP, I know it would do to my business and others like it. The regulations would prohibit profitable business models for small, rural, and independent ISPs, putting many if not most of them right out of business.

Posted by: squirma | November 2, 2009 9:09 PM | Report abuse

From the 3rd par:

"Now, a group of law professors and public interest groups are telling the Federal Communications Commission that its proposed rules don't sufficiently define what that word means for Internet service providers like AT&T, Comcast and Verizon as they management traffic on their networks.

Anything about the wording in the last line or two trouble you? Hire back the proof readers; "management their traffic" indeed.

Posted by: OneIfBySea | November 3, 2009 8:49 AM | Report abuse

"Hire back the proof readers; "management their traffic" indeed." I'm not even a "poof" reader and I noticed about a dozen similar gaffs. Even in the quotations, it should be obviously to any literate 'author' to insert missing words caused by not presenting previous or later comments in the sentence quoted. [I]...[the]...etc. I find it amazing that an article supposedly publish by such a reputable source have such poor grammar. It simply makes understanding the point of the article difficult!

" the spirit of looking at other FCCs and creating..." I wasn't aware there were "other FCCs" !
"...a clear guidepost to carriers for how they could management traffic fairly..." Spell checkers don't check for grammar! It should be "manage" not "manage_M_E_N_T"! :rolleyes:

"He said language in that paragraph was rewritten until the last hour..." As Google is wont to say,"Did you mean 'wasn't?' Or "up until the last hour." :headbash:

Back to the actual comments by different parties: Jeff Campbell, of Cisco says, "Essentially, what Comcast decision said is that you always have to treat everything similar similarly. But there may be situations when that doesn’t make sense. Think it was a prudent change by the commission." So, it is more 'logical' to treat similar items differently? Are these the people we want making input to ANY kind of rule or law?!

Posted by: xairbusdriver | November 3, 2009 10:35 AM | Report abuse


Nobody cares if you are an "ISP" because you truly are not. You don't own ANY pipes, you are a renter and therefore, I would think you would be against the ILECs who are enormously big and essentially oligopolies.

And don't give me that lame excuse about WISPs; I've looked through the "database", or graveyard. The majority of these WISPs can't even be contacted or don't even exist. Get a clue

Posted by: ryangee | November 4, 2009 10:28 AM | Report abuse

"ryangee" -- my name is Brett, not Brian. And I do own quite a few of my own "pipes." I have been building out my own "last mile" infrastructure --including towers, antennas, and radio sites -- for the past 17 years. WISPs serve more than 2 MILLION accounts (and quite a bit more people, because some of those accounts are entire companies or apartment buildings).

Of course, Google's lobbyists for Internet regulation refuse to acknowledge the existence of small or independent ISPs, because their entire fallacious argument for regulation relies on the idea that there is an evil Internet "duopoly" which must be reined in. The fact is, it's Google's monopoly (more than 80% share of the worldwide market for Internet advertising) that must be reined in.

Posted by: squirma | November 6, 2009 3:16 PM | Report abuse

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